Blattman and National Disability Insurance Agency
[2019] AATA 184
•18 February 2019
Blattman and National Disability Insurance Agency [2019] AATA 184 (18 February 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2018/2776
Re:Fabian Blattman
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:18 February 2019
Place:Sydney
The decision under review is affirmed.
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Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – “reasonable and necessary supports” – spinal cord injury termed as C6/C7 tetraplegic – whether the Applicant is entitled to receive transport funding under the “no disadvantage principle” – Applicant was in receipt of a mobility allowance prior to becoming a NDIS participant – whether the Tribunal has jurisdiction to review the decision under review – the decision under review is affirmed.
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
McGarrigle v National Disability Insurance Agency [2017] FCA 308
SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities
The Council of Australian Governments Intergovernmental Agreement
National Disability Insurance Agency, Operational GuidelineREASONS FOR DECISION
Dr L Bygrave, Member
18 February 2019
INTRODUCTION
The applicant, Mr. Fabian Blattman, is 60 years old. He has a spinal cord injury, termed as a C6/C7 tetraplegic, which is the result of an off-road trail bike accident in 1978. He resides alone in a house owned by Housing NSW in Sydney and is employed full-time at Spinal Cord Injuries Australia.
Mr. Blattman became a participant in the National Disability Insurance Scheme (the NDIS or Scheme) on 8 December 2016. He has had NDIS plans approved and dated 8 December 2016, 7 December 2017, 5 March 2018, 12 March 2018 and 7 May 2018.
On 3 April 2018, a representative for Mr. Blattman requested a review of his NDIS plan dated 12 March 2018 because he was not “funded sufficiently”.[1]
[1] Exhibit T-T12.
On 7 May 2018, an internal review by the National Disability Insurance Agency (the NDIA) determined Mr. Blattman would receive additional funding for personal care but no funding for transport support (the internal review decision).[2]
[2] Exhibit T-T2.
On 15 May 2018, Mr. Blattman applied to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review.
Pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), the Tribunal has jurisdiction to review the internal review decision.
The matter was heard in Sydney on 24 January 2019. Mr. Blattman did not have legal representation; he attended the hearing in person and gave oral evidence with the support of Mr. Tony Jones, Advocacy Services Manager at Spinal Cord Injuries Australia.
ISSUES
The issues for determination by the Tribunal are:
·whether level 3 transport funding (in the amount of $3,456 per annum) for Mr. Blattman is a “reasonable and necessary support” as set out in subsection 34(1) of the Act; and
·if not, whether Mr. Blattman is entitled to receive transport funding under the “no disadvantage principle” because he was in receipt of a mobility allowance prior to becoming a NDIS participant.
RELEVANT LEGISLATION
NDIS statutory framework
The objects and principles in the Act provide guidance on the interpretation of the statute. Section 3 sets out the objects of the Act, which include:
·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12);
·supporting the independence and social and economic participation of people with disability;
·providing reasonable and necessary supports for participants in the NDIS;
·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.
Paragraph 3(3)(b) of the Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Section 4 outlines the general principles guiding actions under the Act, which include affirming that people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability. Subsection 4(11) of the Act relevantly provides that:
Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
Under subsection 209(1) of the Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules), which form part of the legislation.
Operational Guidelines have also been drafted by the CEO of the NDIA to assist staff to make decisions and perform functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
Reasonable and necessary supports
Subsection 34(1) of the Act sets out the criteria for the funding of reasonable and necessary supports as follows:
Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. [emphasis added]
Subsection 34(2) of the Act provides that the NDIS rules “may prescribe methods or criteria to be applied”, or matters to which the CEO (and therefore the Tribunal) is to have regard, in deciding whether or not he or she is satisfied of the matters mentioned in subsection (1).
The Support Rules are relevant to assessing and determining the reasonable and necessary supports, and general supports that will be funded for NDIS participants.
Rule 1.4 of the Support Rules provides that:
(e) reasonable and necessary supports for people with disability should:
(i)support people with disability to pursue their goals and maximise their independence;
(ii)support people with disability to live independently and to be included in the community as fully participating citizens; and
(iii)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment…
Rule 5.1 sets out the general criteria for supports and stipulates that a support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
Paragraph 5.1(d) is clarified in rule 5.2, which states that the day-to-day living costs (referred to in paragraph 5.1(d)) do not include:
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
In relation to transport, rules 7.21 and 7.22 of the Support Rules state:
The NDIS will be responsible for:
(a)supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and
(b)modifications to a private vehicle (i.e. not modifications to public transport or taxis); and
(c)the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.
7.22 The NDIS will not be responsible for:
(a)ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or
(b)compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
(c)transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).
EVIDENCE
Mr. Blattman provided a written statement dated 16 January 2019 in which he described his disabilities as:
Physically I am affected from the shoulders down both motor and sensory. Finger function is lost and my arms are partially paralysed. My trunk and legs are totally paralysed. Due to my trunk paralysis I have affected breathing, loss of bladder and bowel control and body core temperature regulating issues, not being able to sweat to cool down in hot weather and poor circulation makes it harder to warm up in colder weather. I have mobility by using a manual wheelchair. I have support worker assistance at home for personal care and domestic duties and require assistance to overcome physical barriers out in the community (steep ramps, accessing public transport and graded inclines on pathways and any access where only stairs exist).[3]
[3] Exhibit A1.
Mr. Blattman is employed full-time at Spinal Cord Injuries Australia. Both in his written statement and his oral evidence to the Tribunal, Mr. Blattman explained that his main means of travel from his home to his workplace is by his privately-owned motor vehicle. He paid for modifications to this vehicle in 2009, which enables him to drive independently. Mr. Blattman told the Tribunal that his commute by car takes one hour each way in travel time and costs $60 per week in fuel, on average.[4] By comparison, if Mr. Blattman used public transport to travel between his home and workplace, this would take more than 90 minutes and cost $71.10 per week.[5] He also uses his car to visit family and friends on weekends. Mr. Blattman uses accessible taxis with the NSW Taxi Subsidy Scheme to attend hospital appointments and some social engagements where it is not convenient to drive and/or park.
[4] Exhibit A4.
[5] Exhibit A5.
Mr. Blattman confirmed at the Tribunal hearing that he is able to drive his vehicle independently. He is also able to transfer into and out of his car independently, although he is assisted into his car each morning by his support worker and, if available, he receives assistance from a colleague to transfer in and out of his vehicle at work.
Prior to becoming a participant in the NDIS, Mr. Blattman received mobility allowance through Centrelink, which is a fortnightly payment to assist with his costs of travel for work because he is unable to use public transport without assistance. When he became a participant in the NDIS, he was no longer eligible to receive mobility allowance.[6]
[6] Eligibility for mobility allowance is set out at accessed on 26 January 2019.
The NDIA approved the following transport support budgets in Mr. Blattman’s NDIS plans:
·8 December 2016 – $3,456;[7]
·7 December 2017 – $864;[8]
·5 March 2018 – $3,456;[9]
·12 March 2018 – $3,456;[10] and
·7 May 2018 – nil.[11]
[7] Exhibit T-T14.
[8] Exhibit T-T15.
[9] Exhibit T-T16.
[10] Exhibit T-T17.
[11] Exhibit T-T18.
Mr. Blattman explained to the Tribunal that he used mobility allowance and, subsequently, transport support funding (which was paid into his bank account each fortnight on a pro-rata basis) to pay for petrol and some minor servicing costs for his motor vehicle.
For completeness, I note that Mr. Blattman also filed with the Tribunal:
·A medical report by Dr. Lianne Nier (Staff Specialist, Spinal Cord Injury Rehabilitation Medicine at Royal North Shore Hospital) dated 20 December 2018, which recommended air-conditioning to assist cervical spinal cord injured patients to maintain a “constant external ambient temperature”.[12]
·A report by Mr. David Quach (occupational therapist) dated 14 August 2018, which concluded:
Mr. Blattman has barriers that prevent him from being able to access public transport independently. These barriers consist of environmental barriers, but also barriers related to his function within the wheelchair and how he is required to sit in the equipment…
[He] would be unable to safely access public transport to attend work with the equipment that he has and his functional limitations.[13]
[12] Exhibit A3.
[13] Exhibit A2.
Neither Dr. Nier nor Mr. Quach gave evidence at the Tribunal hearing. Ultimately, however, this was not an issue because it is undisputed that the most appropriate way for Mr. Blattman to travel between his home and workplace is by his modified private motor vehicle. This means of travel is the least expensive, most time efficient, and safest for Mr. Blattman’s health in terms of his ability to control and regulate his core body temperature.
CONSIDERATION
Before I consider the issues for determination, it is appropriate to briefly review the history of transport support funding paid to Mr. Blattman in his NDIS plans dated 8 December 2016, 7 December 2017, 5 March 2018 and 12 March 2018.
At the Tribunal hearing, the NDIA was asked to explain why Mr. Blattman was provided a transport support budget in his NDIS plans from 8 December 2016 to 12 March 2018 before this support was removed on 7 May 2018. This is because the internal review decision dated 7 May 2018 gave an extremely limited explanation for the decision and the evidence showed that Mr. Blattman’s circumstances of independent driving between his home and workplace had remained constant over this period of time (and indeed, remains constant until now). In other words, there was confusion about why the NDIA had provided transport support funding over a period of 17 months and then decided to stop the funding.
In summary, I can only say the explanations put forward by the NDIA at the Tribunal hearing were speculative and not substantiated by any documentation. Perhaps the most beneficial explanation is that the NDIA knew Mr. Blattman was in receipt of mobility allowance prior to becoming a participant in the NDIS and decided to provide some financial support for his transport costs before “phasing out” this support. I note that this “policy” decision by the NDIA is not explained in the documents before the Tribunal and Mr. Blattman’s oral evidence to the Tribunal was that the NDIA did not communicate this process to him either in writing or verbally.
Although the changing position of the NDIA has generated confusion for Mr. Blattman, this is not the issue for determination by the Tribunal. Rather, my consideration below must examine whether transport funding for Mr. Blattman is a “reasonable and necessary support” consistent with subsection 34(1) of the Act and, if not, whether Mr. Blattman is entitled to receive transport funding under the “no disadvantage principle” because he was in receipt of a mobility allowance prior to becoming a NDIS participant.
I make the following findings of fact based on the evidence before the Tribunal:
·Mr. Blattman was in receipt of mobility allowance prior to becoming a NDIS participant on 8 December 2016. As a NDIS participant, Mr. Blattman is not eligible to receive mobility allowance.
·Mr. Blattman is able to independently access and drive his personal motor vehicle, which has been modified. He commutes between his home and workplace using his motor vehicle because this is the least expensive, most time efficient and safest way for him to travel. He also uses his car for social engagements (seeing family and friends) on a weekend.
·Mr. Blattman uses accessible taxis with the NSW Taxi Subsidy Scheme to attend hospital appointments and some social engagements.
·From 8 December 2016 to 7 May 2018, Mr. Blattman used transport funding support provided through his NDIS plan to pay for petrol and minor servicing costs.
Having regard to these findings, I am satisfied that the provision of level 3 transport funding support for Mr. Blattman is not consistent with paragraphs 5.1(b) and (d) of the Support Rules. This is because I find Mr. Blattman’s petrol and vehicle servicing expenditure is a day-to-day living cost and there is no evidence this expenditure is attributable to Mr. Blattman’s disability support needs. In accordance with rule 5.2, I am satisfied that these costs are neither additional costs incurred by Mr. Blattman solely and directly as a result of his disability support needs nor ancillary to another support funded under Mr. Blattman’s NDIS plan. Rather, the costs of petrol and vehicle servicing are costs borne by many other Australians as a day-to-day cost of living.
I also find that the provision of transport funding support in Mr. Blattman’s NDIS plan is not consistent with rule 7.21; this support does not enable Mr. Blattman to travel independently through personal transport-related aids or equipment, or training to use public transport (paragraph 7.21(a)), or provide modifications to a private vehicle (paragraph 7.21(b)). Paragraph 7.21(c) of the Support Rules, that the NDIS is responsible for the reasonable and necessary costs of taxis or other private transport options, is not relevant in this matter because Mr. Blattman is able to travel independently.
I now consider the provisions of subsection 34(1) of the Act to decide whether level 3 transport support funding is a “reasonable and necessary support” for Mr. Blattman. In my consideration below, I also have regard to Mortimer J’s decision in McGarrigle v National Disability Insurance Agency, which provides the following guidance to assess “reasonable and necessary supports” in the Act:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”…
[The] CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described…then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant… That determination can only be made on the basis of probative evidence.[14]
Will the support assist Mr. Blattman to pursue the goals, objectives and aspirations included in his statement of goals and aspirations – paragraph 34(1)(a)?
[14] [2017] FCA 308 at [91, 93].
Mr. Blattman’s second goal, as set out in his NDIS plans, is to be supported to continue to work in the job he enjoys. The evidence shows Mr. Blattman uses his car to travel between his home and his workplace because this is the least expensive, fastest and safest way for him to travel. There is no evidence before the Tribunal that the removal of transport funding would affect Mr. Blattman’s pursuit of his goals, objectives and aspirations as set out in his NDIS plan.
In these circumstances, I am not satisfied that the requirement in paragraph 34(1)(a) is met.
Will the support assist Mr. Blattman to undertake activities, so as to facilitate his social and economic participation – paragraph 34(1)(b)?
Mr. Blattman is able to travel independently using his private motor vehicle. He is in full-time paid employment with Spinal Cord Injuries Australia and participates in social activities with family and friends.
As set out in paragraph 35 above, I am satisfied that the provision of transport funding support in Mr. Blattman’s NDIS plan is not consistent with rule 7.21, which prescribes the transport supports the NDIS will be responsible for, because Mr. Blattman is able to travel independently.
I am satisfied that transport funding support, in circumstances where Mr. Blattman is able to travel independently and does not require supports for independent travel (such as personal transport-related aids and equipment, or training to use public transport), will not assist him to undertake activities to facilitate his social and economic participation. I therefore find the requirement in paragraph 34(1)(b) is not met.
Does the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support – paragraph 34(1)(c)?
In paragraph 34 above, I find that the provision of transport funding support for Mr. Blattman is not consistent with paragraphs 5.1(b) and (d), and rule 5.2 of the Support Rules. I am satisfied that Mr. Blattman’s transport support funding, which he has used to pay for petrol and minor servicing costs, are day-to-day living costs not attributable to his disability support needs. It follows that I cannot be satisfied that the costs of this support are reasonable as required by paragraph 34(1)(c) of the Act.
Will the support be, or likely to be, effective and beneficial having regard to current good practice – paragraph 34(1)(d)?
I am satisfied that paragraph 34(1)(d) is not relevant to this matter.
Does the funding take account of what it is reasonable to expect families, carers, informal networks and the community to provide – paragraph 34(1)(e)?
I am satisfied that paragraph 34(1)(e) is not relevant to this matter.
Is the support appropriately funded through the NDIS – paragraph 34(1)(f)?
In view of my findings at paragraphs 34 and 35 above, that the support does not meet the requirements in rules 5.1 and 7.21 of the Support Rules, I am not satisfied that the support is appropriately funded through the NDIS.
Conclusion
For the reasons set out above, I am not satisfied that level 3 transport funding for Mr. Blattman is a “reasonable and necessary support” as set out in subsection 34(1) of the Act.
I now consider whether Mr. Blattman is entitled to receive transport funding under the “no disadvantage principle” because he was in receipt of mobility allowance prior to becoming a participant in the NDIS.
Is Mr. Blattman entitled to receive transport funding under the “no disadvantage principle”?
In written submissions dated 3 August 2018, Mr. Jones wrote that:
For [NDIS] participants who have moved from Mobility Allowance to transport funding as an NDIS participant, it has always been broadly understood to be a like- for-like transfer.[15]
[15] Applicant’s Grounds of the Appeal, dated 3 August 2018, page 2.
In response, the NDIA submitted that this would mean that any NDIS participant who has transitioned from the Commonwealth mobility allowance would be paid transport funding support, irrespective of whether this meets the statutory criteria for a reasonable and necessary support. In particular, the Agency stated that:
irrespective of whether the “no disadvantage principle” has any statutory force or is merely exhortatory, at its highest, it does not mean that the Applicant (or any applicant) is entitled to support that would not otherwise be payable under the NDIS… [16]
[16] Respondent’s Statement of Facts, Issues and Contentions dated 10 October 2018, para 72.
The Council of Australian Governments Intergovernmental Agreement for the NDIS Launch (the COAG Agreement) made on 7 December 2012 contained the following provisions:
Continuity of Support
60 COAG has committed to provide continuity of support to people with disability currently receiving services to ensure that they are not disadvantaged in the transition to a NDIS…
63 Where the NDIS takes on responsibility for providing continuity of supports for a person under paragraph 62 above the Agency will work with the person to develop a transition strategy for that person. This strategy will:
(a)ensure no disadvantage in a person’s outcomes — the supports provided by the NDIS will enable the person to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by their previously provided support; and
(b)the period of this transition will depend on the person’s circumstances and the type of support being provided, and the extent to which there are alternative supports to transition to.[17]
[17] See accessed 1 February 2019.
Of most relevance to this issue, Mr. Blattman provided no evidence to the Tribunal that he has been disadvantaged (financially or otherwise) by not receiving transport support funding since 7 May 2018. In particular, there was no evidence or submissions to the Tribunal at the hearing that Mr. Blattman has not been able “to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by [his] previously provided support” (as provided in paragraph 63(a) of the COAG Agreement) since he has become an NDIS participant or since transport support funding ceased on 7 May 2018.
I am therefore not satisfied that Mr. Blattman is entitled to receive transport funding on the basis of the “no disadvantage principle”.
DECISION
The decision under review is affirmed.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 18 February 2019
Date(s) of hearing: 24 January and 25 January 2019 Date final submissions received: 17 January 2019 Advocate for the Applicant:
Counsel for the Respondent:
Mr T Jones
Ms R Graycar
Solicitor for the Respondent: Mr A Downie
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